ISLAMABAD: With the Supreme Court set to take up on Tuesday (today) intra-court appeals against its Sept 15 majority judgement that declared amendments to the National Accountability Ordinance (NAO) illegal, Justice Syed Mansoor Ali Shah — who had dissented with the verdict — has said that the judges of constitutional courts as well as members of the armed forces are accountable under the NAB law.

“We must therefore,…be clear that members of Armed Forces and the judges of the constitutional courts are fully liable under the NAB Ordinance, like any other public servant of Pakistan,” observed Justice Shah in his 27-page minority judgement released on Monday.

In the 2-1 verdict, the court had ordered to restore corruption cases against public representatives as it struck down some sections of the amendments made to the accountability law last year by the previous coalition government.

Justice Shah cited American jurist Antonin Scalia by stating that ‘dissenter speaks to the future, and his voice was pitched to a key that will carry through the years…the [dissenters] do not see the hooting throng. Their eyes are fixed on eternities’.

In minority judgement on NAB law tweaks case, Justice Mansoor says courts cannot interfere in parliament’s internal workings

Justice Shah observed that courts must rise above the ‘hooting throng’ and keep their eyes set on the future of democracy, undeterred by the changing politics. Courts don’t have to win popular support. Courts are to decide according to the Constitution and the law even if the public sentiment is against them, he observed.

Justice Shah emphasised that parliament was a constitutional body and being consisted of chosen representatives of people, it attains the status of a prime constitutional body.

Any decision taken by the majority of the constitutional body is treated as the decision of the whole of the body comprising all its members and not only of those who voted for the decision.

Can any member of these constitutional bodies, who was in the minority, challenge the validity of that decision in court? Not, in my opinion, Justice Shah explained.

The principle of parliamentary sovereignty holds that decisions made according to its rules and procedures are supreme. This means that courts cannot typically interfere with the internal workings or decisions of parliament, Justice Shah emphasised, adding that democratic systems were often built on the principle of majority rule.

Allowing minority members to easily challenge majority decisions would undermine this fundamental democratic principle, the judgement said.

Exemption issue

Reverting back to the Asfandyar case, Justice Shah explained that during more than 50 hearings, a question had arisen; could judges and armed forces enjoy exemption from NAO?

The apex court in the 2001 Asfandyar case had held that non-applicability of NAB ordinance to armed forces and the judges of superior courts were not discriminatory since they were held accountable under the Pakistan Army Act 1952 and under Article 209 of the Constitution, respectively.

It appeared, Justice Shah explained, that in order to secure the independence of important national institutions the court had made these observations that if the armed forces’ members or judges should at first be proceeded against by the departmental authority and once found guilty and removed from official position, only then could they be investigated and tried under the anti-corruption criminal laws.

“If we do not read and understand the observations in the Asfandyar case, the legal position would be clearly hit by the basic constitutional value and the non-negotiable fundamental right of equality before law,” Justice Shah observed.

It would mean that other holders of public offices, in addition to facing civil consequences, will suffer criminal punishment of undergoing imprisonment and forfeiture of their unaccounted-for assets, while members of the armed forces and judges would get off scot-free.

And after removal from official position, they would be set free to enjoy the assets accumulated through corrupt means. Such reading of the judgement would allow them to unjustly enrich themselves and retain the unlawful enrichment without any accountability, thus becoming untouchable and above the law, Justice Shah regretted.

Such reading would then be reprehensible and revolting to the conscience of the people of Pakistan and bring the court into serious disrepute.

Justice Shah explained that since the parliamentarian was remunerated by salary and allowances for the performance of public duties, he fulfils the conditions to fall within the scope of the “public servant” and thus triable as a public servant for corruption under the Pakistan Penal Code (PPC) and the Prevention of Corruption Act (PCA).

Referring to creating higher threshold of Rs500 million for NAB to entertain complaints when superior courts had already termed Rs100m as mega scandals, Justice Shah observed, it was not the domain of the courts to determine what value of corruption makes it one of mega scandals.

The courts cannot force the legislature to act upon their recommendations nor can they strike down any law competently enacted by the legislature if it does not commensurate with their recommendations.

Justice Shah observed that if parliament can enact these laws, it can surely amend them in the exercise of the legislative power.

The argument cannot be acceded to that parliament after enacting these laws has no power to amend, modify or repeal them.

Published in Dawn, October 31st, 2023